Courts Martial

 

COURT MARTIAL

 

Citation: R. v. Meeks, 2023 CM 2013

 

Date: 2023628

Docket: 201960

 

Standing Court Martial

 

4th Canadian Division Support Base Petawawa

Petawawa, Ontario, Canada

 

Between:

 

Sergeant J.K. Meeks, Applicant

 

- and -

 

His Majesty the King, Respondent

 

 

Before: Commander S.M. Sukstorf, M.J.

 

DECISION ON WHETHER THE APPLICANT IS NOT CRIMINALLY RESPONSIBLE ON ACCOUNT OF MENTAL DISORDER

 

(Orally)

 

Introduction

 

[1]               On 12 December 2022, this Court found that the prosecution had proved all the essential elements of the actus reus of assault causing bodily harm committed by Sergeant (Sgt) Meeks on Private (Pte) Meadows, on or about 18 June 2019, at or near Kaiserslautern, Germany.

 

[2]               Following the Court’s finding that Sgt Meeks committed the assault, the Court must now determine whether the assault occurred while he was in a dissociative state, brought on by the mental disorder of post-traumatic stress disorder (PTSD).

 

[3]               Accordingly, Sgt Meeks seeks a determination pursuant to subsection 202.13(1) of the National Defence Act (NDA), that he is not criminally responsible by reason of mental disorder (NCRMD) for the assault on Private Meadows.

 

[4]               A finding of NCRMD would mean that Sgt Meeks is not held morally responsible for his actions because he was mentally incapable of appreciating the nature and consequence of his behaviour or understanding that it was wrong. A verdict of NCRMD supports a two-fold public purpose in that: (a) morally innocent offenders receive treatment instead of punishment, and (b) the public must be protected from criminal behaviour (see paragraph 52 of R. v. Bouchard-Lebrun, 2011 SCC 58 ).

 

[5]               However, the practical effect of an NCRMD is not without consequences for the offender. There can be dramatic consequences that flow from being found NCRMD as it triggers a further administrative process. If there is a finding of NCRMD, a court martial must then determine the appropriate disposition for Sgt Meeks. If this occurs, the court’s focus shifts from punishment to addressing concerns for public safety and the treatment of the individual's mental disorder. When a court martial does not make a disposition with respect to the accused after the NCRMD verdict, the NDA implies that the matter must then be referred to a review board for a disposition (see subsections 202.21 (1), (2), (3); 202.22 (3.1); 202.25 of the NDA).

 

[6]               In the extreme case, the court martial can order Sgt Meeks to be hospitalized for assessment and treatment of his mental disorder. The goal would be to provide appropriate care and address the underlying issues that contributed to the offence before the Court.

 

Background facts as determined by the Court

 

[7]               All the relevant facts that relate to the charge before the Court are laid out in full in my earlier decision in R. v. Meeks, 2022 CM 2016, issued on 12 December 2022. Included herein is an abbreviated summary of those findings within that decision.

 

[8]               On 18 June 2019, Sgt Meeks was in Kaiserslautern, Germany with members of the 3rd Battalion of the Royal Canadian Regiment, participating in a United States-led international exercise named Exercise SWIFT RESPONSE. On the evening before the events in question, the rear party had gone into Kaiserslautern, Germany for dinner and drinks.

 

[9]               After dinner, Sgt Meeks and other members of the 3rd Battalion went to a nightclub where they continued to consume alcohol until they were advised of a “communications lockdown”, and the need to return to the base immediately. They were not told the details of the incident that related to the communications lockdown, but they would learn the next day that a parachute accident had occurred during a jump into Bulgaria and that a bombardier had died.

 

[10]           Sgt Meeks advised all the soldiers in the nightclub of the order and although some soldiers exited immediately, others did not. Sgt Meeks became increasingly agitated. After concerted efforts were made to entice the stragglers out of the bar, the evidence suggested they were all standing outside waiting for taxis when Pte Melvin went back into the nightclub to retrieve his cigarettes.

 

[11]           When Pte Melvin returned from getting his cigarettes, an argument broke out between him and Sgt Meeks which led to yelling, pushing, and shoving. In an effort to de-escalate the situation, Pte Berthe placed himself as an obstacle between Sgt Meeks and Pte Melvin. Sgt Meeks pushed Pte Berthe to the side to get at Pte Melvin, but then, Pte Meadows intervened. Somehow Pte Meadows was either pushed or tripped, but he fell to the ground.

 

[12]           When Pte Meadows got up, Sgt Meeks punched Pte Meadows with a single, close-fisted punch on the left-hand side of his face that appeared to knock him out. After Pte Meadows fell to the ground, Sgt Meeks then soccer-kicked him in the face. Pte Meadows did not respond to the soccer kick, and while Captain (Capt) Simmons and Capt Korajlija pulled Sgt Meeks away, Sgt Meeks “kind of dropped his heel” on Pte Meadows’ head.

 

[13]           Pte Prupas heard Sgt Meeks say something to the effect of, “night night Nigger.” Given that Pte Meadows is Caucasian, the Court found that Sgt Meeks’ use of the term was a message of his intention to inflict serious bodily harm on Pte Meadows.

 

[14]           Relevant evidence regarding the behaviour of Sgt Meeks is as follows:

 

(a)               none of the soldiers reported having any issues with Sgt Meeks earlier in the evening. In fact, they told the Court that Sgt Meeks bought Pte Melvin and his table a round of shots and he was in good spirits;

 

(b)               although the others left the scene after the incident, Sgt Meeks remained;

 

(c)               Sgt Meeks either attempted to give first aid and/or instruct the paramedics with respect to Pte Meadows, who was lying on the ground;

 

(d)               Sgt Meeks was later arrested by German police and spent an unknown amount of time in police custody;

 

(e)               Warrant Officer (WO) Royce testified that:

 

 

                                            i.            he picked up Sgt Meeks the next morning. Sgt Meeks told him that he had been “roughed up” by the German police with batons and was hit in the back of his head;

 

                                          ii.            it was only when WO Royce picked up Sgt Meeks the next morning, that WO Royce informed him of the fallen soldier in the parachute incident. WO Royce testified that Sgt Meeks seemed shocked at the seriousness of the incident;  and  

 

                                        iii.            Sgt Meeks did not say anything about what happened outside of the bar, but did say that when he exited the nightclub, Pte Meadows was on the ground;

 

(f)                Major Williston testified that:

 

                                            i.            he was advised of the incident involving Sgt Meeks by Chief Warrant Officer Durnford (CWO) (retired);

 

                                          ii.            when Sgt Meeks returned to the base, he noticed that Sgt Meeks’ forearms were sore, and his knuckles were grazed. Sgt Meeks told him that he had been hit by batons after his release from the German police station;

 

                                        iii.            Sgt Meeks told him that when he came out of the establishment a member of their team was lying on the ground in distress, and he attempted to provide first aid;

 

                                        iv.            Sgt Meeks explained that when he was providing first aid, the other Canadian Armed Force (CAF) members came out and words were said and punches were thrown;

 

                                          v.            he believed that he mentioned the parachute incident to Sgt Meeks, but Sgt Meeks seemed to already know that something had happened on the drop zone (DZ); and

 

                                        vi.            Sgt Meeks was coherent, calm, and answered his questions with no issue.

 

(g)               Capt Simmons testified that:

 

                                            i.            prior to the incident, he recalled Sgt Meeks explaining to the junior ranks what a communications lockdown was and the implications of that being enacted while impressing upon them the seriousness of the situation and that they could have a soldier on the DZ with a broken back;

 

                                          ii.            he is not sure what transpired later, but the situation turned into raised voices and then pushing and shoving;

 

                                        iii.            he observed Ptes Meadows, Melvin and Berthe all yelling at Sgt Meeks;

 

                                        iv.            Sgt Meeks’ demeanour became agitated and aggressive and was not the same demeanour he had when first leaving the bar;

 

                                          v.            with respect to the pushing and shoving, he was not sure if Pte Meadows pushed Sgt Meeks but he saw Sgt Meeks push Pte Meadows with a two-handed push out from his chest, forward, which pushed Pte Meadows off balance;

 

                                        vi.            when Pte Meadows got up, Sgt Meeks punched Pte Meadows once with a closed fist to the left-hand side of his face;

 

                                      vii.            Pte Meadows appeared to be knocked out when he fell to the ground and then Sgt Meeks soccer-kicked him in the face. Pte Meadows did not respond to the soccer kick;

 

                                    viii.            after Sgt Meeks kicked Pte Meadows, both Capt Korajlija and the witness pulled Sgt Meeks away, and as they were doing that, he tried to drop his heel on Pte Meadows’ head;

 

                                        ix.            as he and Capt Korajlija were pulling Sgt Meeks back, the three of them fell over and then he convinced Sgt Meeks to go around the corner with him and he calmed him down; and

 

                                          x.            while around the corner, he described Sgt Meeks as visibly angry, clenching his fists and not really looking at him. He further described trying to defuse the situation, he kept reminding Sgt Meeks of his daughter and that what he did would have consequences. He was in disbelief and asked Sgt Meeks, “Why did you do that?” Sgt Meeks responded with, “That’s what I do”. He understood “That’s what I do” in the context of Sgt Meeks just coming off a fight where he knocked the other person out, and that is what he does. He did not recall Sgt Meeks making any other comments. He described Sgt Meeks as hearing him, but not listening and not appearing to understand what Capt Simmons was saying. Sgt Meeks was not looking at him, but rather, he was looking to his left and to his right and grunting with an adrenalin rush and not focussed on what he was telling him. The police arrived shortly thereafter, which included the American military police as well as the German police and they tried to figure out what happened.

 

(h)               Capt Korajlija testified that:

 

                                            i.            as he and Capt Simmons were pulling Sgt Meeks away, Sgt Meeks kicked Pte Meadows in the face, but he cannot recall exactly where the kick landed. It was the toe of Sgt Meeks’ shoe that hit Pte Meadows in the face, but he was unable to describe how hard the kick was;

 

                                          ii.            he did not recall Sgt Meeks saying anything when he and Capt Simmons were pulling Sgt Meeks away; and

 

                                        iii.            Capt Simmons then grabbed Sgt Meeks and they walked about twenty to twenty-five metres from where Capt Korajlija was standing.

 

(i)                 Mrs Meeks shared the following relevant information with Dr Selaman which is included in her report filed in Court;

 

                                            i.            on the night of the alleged offences, Sgt Meeks called her. She said it must have been approximately 10 p.m. in Canada and she was in bed with her newborn baby. She said he was not making sense. He spoke about the German police and wanted her to call the Commander of the Army. She was initially annoyed and thought it was just a drunken phone call. She then became worried and frustrated when it “sounded like he was in prison.” She called the base number and told them that Sgt Meeks was in a German jail. They said, “Yes ma’am” and that they would call her with updates. From that phone call, it did not appear that Sgt Meeks was already on the base; and

 

                                          ii.            with respect to the conversation, Mrs Meeks indicated that Sgt Meeks was, “Just, like, crazy. Yelling into the phone. Paranoid and crazy and saying German police had beaten him, that he needs access to a lawyer, that he was in jail.”  She had limited reception and was confused so she did not get any more details. She said he was not slurring his words, but he was “so intense” and “speaking quickly.” She said that he did not indicate there was an altercation with anyone else, but she also did not get much out of him.

 

[15]           The evidence also suggested that Pte Meadows was a well-liked, hard-working soldier and Sgt Meeks never had any issues with him.

 

Issues

 

[16]           One of the significant issues that arise in this application is the weight to be given to two contradictory expert opinions proffered by forensic psychiatrists, Dr Ward and Dr Selaman. The written report of Dr Ward was requisitioned by Sgt Meeks’ former defence counsel and was produced on 18 October 2020.

 

[17]           On 30 November 2021, pursuant to subsection 202.13(4) of the NDA, based on reasonable grounds to believe that evidence of Sgt Meeks was necessary for the purpose of determining whether he was, at the time of the commission of the alleged offence, suffering from a mental disorder to be exempt from criminal responsibility, the Court ordered that Sgt Meeks be assessed. Due to the lack of availability of a forensic psychiatrist to complete the assessment within thirty days, the order was amended to begin on 4 January 2022, with a deadline of 3 February 2022. Dr Selaman completed the court-ordered assessment.

 

[18]           Based on her assessment, Dr Ward provided the following written opinion:

 

“It is my opinion that, on a balance of probabilities, Sgt Meeks was unable, as a result of a mental disorder, to appreciate the nature and quality of his actions at the time of the alleged offences. He would therefore meet the criteria for being Not Criminally Responsible by Reason of a Mental Disorder for each of the alleged offences, and would come under Section 16(1) of the Criminal Code of Canada, or in the case of the offences covered only by the National Defence Act, Section 202.13 of the Act.”

 

[19]           In contrast, Dr Selaman concluded:

 

“In summary, my opinion, on a balance of probabilities, is that Sgt Meeks suffered from PTSD (longstanding) and was under the influence of alcohol at the time of the alleged offences. His ability to appreciate the nature and quality of his actions was not impaired. He was driven by a rational motive; thus, he was able to know the wrongfulness of his actions at the material time.”

 

[20]           Both Dr Ward’s and Dr Selaman’s original written opinions referenced above, were based on their respective interviews with Sgt Meeks during their preliminary assessments as well as all the documentary and video evidence, including witness statements they were provided at that time.

 

[21]           Both their written reports were completed prior to the witnesses testifying and the Court coming to its determination on the findings of fact. However, both were present during the testimony of Sgt Meeks and were provided with a copy of the Court’s written decision that assessed the credibility of the various witnesses, made findings of fact, and came to the determination as to whether the prosecution had proven the essential elements of the actus reus of the offence of assault causing bodily harm.

 

Positions of the parties

 

Prosecution

 

[22]           The prosecution argued that the evidence is not sufficient to establish on a balance of probabilities that Sgt Meeks dissociated and acted involuntarily. In particular, the prosecution challenged the credibility and reliability of Sgt Meeks’ evidence that he dissociated, and the factual basis for Dr Ward’s expert opinion. The prosecution argued that the expert evidence of Dr Selaman should be given the greatest weight and that together with the evidence before the Court, Sgt Meeks has failed to establish the foundation required for a verdict of NCRMD.

 

Defence

 

[23]           Conversely, Sgt Meeks argued that the expert opinion of Dr Ward should be given the greatest weight. He argued that the evidence establishes that he was in a dissociative state at the time of the offences and was incapable of appreciating the nature and quality of his acts and of knowing that they were wrong. Consequently, on a balance of probabilities, and in accordance with the policy considerations of the defence as set out in the case of Bouchard-Lebrun, this is one of those cases that must be focussed on the treatment of Sgt Meeks and ensuring that treatment is provided, rather than punishing the member who is suffering.

 

Outline of analysis

 

[24]           Whether or not I am persuaded on a balance of probabilities that Sgt Meeks dissociated is a factual issue that must be assessed in the context of all the evidence. It is the heart of what is in dispute in this application.

 

[25]           My analysis of this issue is structured as follows:

 

(a)               Legal framework. I summarize the applicable law in relation to NCRMD in general, including automatism/involuntariness;

 

(b)               Mental disorder. Was Sgt Meeks suffering from a mental disorder at the time of the assault?

 

(c)               Testimony and credibility of Sgt Meeks. I consider the credibility and reliability of Sgt Meeks’ evidence about the assault and the events surrounding the assault;

 

(d)               Assessment of  R. v. Stone,[1999] 2 S.C.R. 290 factors. I reviewed the factors to be considered which are specific to automatism. I note that the consideration of the Stone factors overlaps with the assessment of Sgt Meeks’ credibility and reliability, and the assessment of the expert evidence.

 

(e)               Expert evidence; I provide a summary of the expert evidence; and

 

(f)                Capacity assessment:

 

                                            i.            Did the mental disorder render Sgt Meeks incapable of appreciating the nature and quality of his actions?

 

                                          ii.            Did the mental disorder render Sgt Meeks incapable of knowing that his acts were wrong?

 

Legal framework

 

[26]           Section 202.13 of the NDA reads as follows: 

 

Defence of mental disorder

 

202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

 

Presumption

 

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

 

Burden of proof

 

(3) The burden of proof that an accused person was suffering from a mental disorder so as to be exempt from responsibility is on the party raising the issue.

 

Assessment order

 

(4) Subject to regulations, where a court martial has reasonable grounds to believe that evidence of the mental condition of an accused person is necessary for the purpose of determining whether the accused person was, at the time of the commission of the alleged offence, suffering from a mental disorder so as to be exempt from responsibility, the court martial may make an order for an assessment of the accused person.

 

[27]           Subsection 202.13(2) enacts a presumption of criminal responsibility, meaning that everyone is criminally responsible for their own conduct. Everyone is presumed not to suffer from a mental disorder that would exempt them from criminal responsibility until the contrary is proved on the balance of probabilities. A balance of probabilities requires that the evidence be sufficiently clear, convincing, and cogent to establish that it is more likely than not that the alleged elements exist: (see paragraphs 46 and 49 of F.H. v. McDougall, 2008 SCC 53).

 

[28]           Subsection 202.13(3) makes it clear that the presumption set out at subsection 202.13(2) is rebuttable. In this case, the burden of proof is assigned to Sgt Meeks to provide evidence that he was suffering from a mental disorder to be exempt from responsibility and to rebut the presumption.

 

[29]           For the purposes of interpreting section 202.13 of the NDA, the Court is informed by the jurisprudence arising from the almost identical provision set out at section 16 of the Criminal Code.

 

[30]           Subsection 202.13(1) of the NDA defines the scope of the exemption from criminal responsibility provided by mental disorder. At the basic level, it is important to recognize that many individuals suffer from mental illness, yet never commit criminal offences. The presumption is not that persons do not suffer from mental disorder but, rather that they do not suffer from a mental disorder that is of sufficient magnitude or gravity that they are exempt from criminal responsibility on that account. For an accused person to be exempt from criminal responsibility, two components must be satisfied: 

 

(a)               the accused person must have a condition, a mental disorder; and

 

(b)               that there be an incapacity associated with that mental disorder that renders a person incapable of appreciating the nature and quality of an act or omission, or incapable of knowing that the act or omission was wrong.

 

[31]           In other words, a mental disorder may only exempt an accused person from criminal responsibility if it renders them incapable of appreciating the nature and quality of an act or omission or renders them incapable of knowing that the act or omission was wrong.

 

[32]           Mental disorder is very broadly defined at subsection 2(1) of the NDA as a “disease of the mind; (troubles mentaux)”. Fortunately, this term, which is comparable to the term used in the Criminal Code, has been further refined by the courts. The question of what conditions are included within it is a question of mixed law and fact because it involves an assessment of the evidence in the case rather than a general principle of law. Importantly, the term “disease of the mind” is a legal concept with a medical component. Disease of the mind embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning (see R. v. Cooper, [1980] 1 S.C.R. 1149).

 

[33]           In utilizing the two terms “appreciating” and “knowing”, Parliament clearly intended that different tests be used. The verb “know” has a positive connotation requiring “being aware” while “appreciating” involves a degree of analysis of knowledge or experience (see R. v. Barnier, [1980] 1 S.C.R 1124). In Barnier, the Supreme Court of Canada (SCC) also established that “appreciate” is a much broader term than “know”. It also held that “appreciate” entails a higher level of understanding and includes the ability to measure and foresee the consequences of violent conduct. To “appreciate” requires both knowledge and understanding. The accused must be capable of foreseeing and measuring the physical consequences of his act.

 

[34]           Appreciation of the “nature and quality” of the act refers to an incapacity by reason of disease of the mind to appreciate the physical consequences of the act (see R. v. Landry, [1991] 1 S.C.R. 99)

 

[35]            “Wrong” means “morally wrong” and not simply “legally wrong” (see R. v. Chaulk , [1990] 3 S.C.R. 1303). Furthermore, the accused must have the ability to apply this knowledge at the time of the otherwise criminal act (see R. v. Oommen, [1994] 2 S.C.R. 507).

 

[36]           In her opinion, Dr Ward suggests that Sgt Meeks was in an automaton or dissociative state because of his PTSD. The defence of automatism is not included in either the NDA or the Criminal Code but where automatism is determined by the court, it is dealt with according to common law as an adjunct to the general provisions regarding criminal responsibility. Two sorts of automatism are recognized at common law: mental disorder and non-mental disorder automatism.

 

[37]           However, when the alleged automatism is the result of a mental disorder as is reflected in the opinion of Dr Ward and as argued by Sgt Meeks, then the trial judge conducts its analysis following the NCRMD pathway as established at section 202.13 of the NDA.

 

[38]           The SCC decision in Stone maps out the procedure to be followed in assessing whether the actions of an accused are voluntary or not. In Stone, the majority took a great deal of time to outline a non-exhaustive list of relevant considerations for a trier of fact in assessing the defence. Based on the specific facts and arguments made in this case, Stone is not directly applicable; however, it provides helpful guidance on how to conduct an analysis on the important issues that are applicable in this case.

 

[39]           In practical terms, it suggests that in addition to considering Sgt Meeks’ testimony that he acted involuntarily, which is to be assessed based on his credibility and reliability, there must be expert psychiatric evidence to support the defence (which I note exists in this case, being Dr Ward). However, I must also assess her expert opinion for credibility, reliability, as well as determine whether the factual foundation for her opinion accords with the facts found in my 12 December 2022 decision.

 

[40]           In addition, I should consider if there is other evidence which corroborates Sgt Meeks’ claim of lack of voluntariness, which can be found in documented medical history of automatic-like dissociative states. If there is a historical pattern of dissociation, whether the pattern is like the current claim of automatism should be considered, although the Court is also aware that a medical history of dissociation is not a requirement for a successful defence.

 

[41]           I should consider whether there is corroborating evidence of other witnesses or bystanders concerning their observations of Sgt Meeks at the time of the assault that are relevant to assessing his claim that he acted involuntarily, although I am conscious of the fact that it may not always be apparent when a person is in an automatic state.

 

[42]           A trier of fact should also consider whether there is evidence of motive on the part of Sgt Meeks to commit the offence alleged, because a motiveless act may lend plausibility to a claim of involuntariness (see paragraphs 182 – 192 of Stone).

 

[43]           Ultimately, I must assess all the relevant evidence and decide whether Sgt Meeks has met the burden of proof on a balance of probabilities to show that the act was involuntary.

 

[44]           In assessing whether Sgt Meeks has a viable defence of NCRMD, I employed the two-stage analysis set out by the SCC at paragraph 56 of Bouchard-Lebrun that required the Court to consider two sets of questions:

 

(a)               was Sgt Meeks suffering from a mental disorder on 18 June 2019 at the time of the incident? And, if so;

 

(b)               Capacity Assessment: Did the mental disorder render Sgt Meeks incapable of:

 

                                            i.            appreciating the nature and quality of his actions; or

 

                                          ii.            knowing that his acts were wrong?

 

Mental Disorder - Was Sgt Meeks suffering from a mental disorder at the time of the incident?

 

[45]           The determination of whether Sgt Meeks was suffering from a mental disorder is a question of law, and although medical evidence is essential in reaching the legal conclusion about whether a specific mental condition is a mental disorder, the medical evidence by itself is not determinative of the issue. It is a question for me as the trial judge to determine.

 

[46]           In her testimony, Dr Ward made it very clear that the diagnostic criteria for determining whether an individual is suffering from PTSD is quite complex. It requires that Sgt Meeks have had direct exposure to an actual or threatened death, serious injury, etc. In addition, there needs to be the presence of one or more of the intrusive symptoms that are associated with the traumatic event(s).

 

[47]            For the purposes of this determination, the following summarized points of Sgt Meeks’ experiences in combat are highlighted:

 

(a)               Sgt Meeks deployed to Afghanistan on two separate occasions. His first deployment in 2008 and 2009 was to the Panjwai District in Afghanistan for eight and a half months. He described his deployment as filled with gun fights, improvised explosive device (IED) contacts, exposures, suicide bombers with numerous deaths occurring within his company. He lost four friends, and one soldier he knew had a single leg amputation because of an IED strike. In addition, they were also shot at by a friendly tank during that same deployment. From his consultations with Dr Selaman, she wrote the following: “[H]e was exposed to several gun fights and “fire fights” that lasted up to seven hours. Many people were killed due to Improvised Explosive Devices (IEDs) and he provided combat First Aid to many colleagues. He recalled placing tourniquets on people with missing limbs, and having his hands inside of people while packing wounds. The first major traumatic event that he recalled that had a lasting effect on him occurred on March 20, 2009. He was the first person on the scene of an IED site. There were two Canadians and an interpreter who died due to the explosion. Sgt Meeks recalled a body part landing near him. When he started to provide First Aid to the fallen Canadian soldier, Tyler, he heard his last words while blood was coming out of his mouth. For some time after this event he had dreams that he would run to Tyler and be able to provide more medical support but in the end, Tyler still died”; and

 

(b)               his second tour to Afghanistan occurred in 2010. He was employed as a close protection operator and worked in the headquarters. His role was to support the Chief of Staff with evacuation and support plans, and he did a great deal of driving. This second tour involved a high frequency of finding unexploded IEDs, etc., requiring them to be detonated in place to permit their travel. In his consult with Dr Selaman, he described that “He found the driving was ‘mentally worse than being shot at’ due to the fear of not knowing when the road would ‘disappear’. He felt he was ‘prepared to die’ every day and many people were unable to continue doing their jobs because of the intensity of the stress.”

 

[48]           The above experiences caused him to develop a normalized practice of hypervigilance. He explained that when you are in combat, you were always looking for signs of IEDs, bombs, weapons, ammunition, and medical supplies, etc., and that this practice has since dominated all aspects of his civilian life.

 

[49]           Upon his return from his various tours in Afghanistan, he had recurring dreams about Tyler which were only suppressed when he drank enough to fall asleep. He became hypervigilant and unable to relax. He was quick to anger, and irritable. He became paranoid and would set up traps in his basement and hated driving vehicles. He told Dr Selaman that thoughts about individuals he had killed during his first combat tour invaded his mind and he started to doubt the system.

 

[50]           He had recurring distressing dreams related to the trauma from his tours in Afghanistan. As an example, Dr Selaman reports that while visiting “his parents’ house, his mother came upstairs to find him screaming. He said he was on the ground trying to get something and screaming that he was getting bombed. He was asleep and his mother had to wake him up.” Dr Selaman wrote, “at one time he also thought he heard gunshots and bombs going off. When they were watching TV in the basement, he thought he heard a TV turned on upstairs. When he heard a car backfiring or construction site noises, it would remind him of some of his experiences from his tour.”

 

[51]           Further, Dr Ward confirmed that an individual’s childhood experiences could predispose them to increased vulnerability to PTSD later in life, which she confirmed occurred in Sgt Meek’s case. His childhood did contain trauma sensitizing him to PTSD, making it more likely that he would subsequently develop it. Some of the examples the Court heard involved emotional and physical abuse as follows:

 

(a)               his stepfather was strict and verbally abusive;

 

(b)               he required the young Sgt Meeks to have his room clean and “inspection ready”. On one occasion when his father was inspecting his room, he could find no fault with his Lego fire station, so he kicked it. This led the young Meeks to suicidal thoughts; and

 

(c)               when he was twelve, and did not vacuum his room properly, his father threw the vacuum hitting Sgt Meeks on his back as he ran down a flight of stairs. He sprained his ankle and hit his head.

 

[52]           Sgt Meeks has been diagnosed with PTSD by multiple medical examiners, beginning as early as 11 January 2011 by Dr  Smith who determined that at that point, he met the diagnostic criteria of PTSD. Later, on 7 February 2012, psychiatrist, Dr Quinn, also diagnosed him as having PTSD, but she determined that, at that time, it was in remission at that time with an “excellent prognosis.”

 

[53]           It is also notable that on 5 July 2021, following a psychiatric consultation through the Operational Stress Injury Clinic at the Royal Ottawa Mental Health Centre, Drs Taplin and Gomez found that Sgt Meeks “clearly met criteria for posttraumatic stress disorder and that as a compensation he appeared to develop some obsessive-compulsive personality traits that led to burnout in his work environment and strained his relationships at home.”

 

[54]           During the testimony of the two experts at the court martial, there was tacit agreement that Sgt Meeks developed full criteria for PTSD after his first tour to Afghanistan in 2008-2009, however, it was also noted that he often underplayed his symptoms in hopes of avoiding any negative impact on his career.

 

[55]           As for the assessment of symptoms of PTSD, Dr Ward notes in her written report before the Court, that after the assault when Sgt Meeks was admitted to Bellwood, he scored 48 on the Psychopathy Checklist (PCL 5) outcome measure with the overall severity of Sgt Meeks’ PTSD assessed at a moderate level. Dr Ward wrote:

 

“He experienced multiple symptoms from all of the clusters within PTSD, which were disabling. Sgt Meeks covered up his symptoms to continue working in the military, as being an ambitious active-duty soldier is . . .  part of his identity. He stopped describing them to health care workers and revealed as little as possible on screening examinations. Nonetheless, his symptoms persisted, and he consumed heavy amounts of alcohol to attenuate them.”

 

[56]           Dr Selaman, the court-ordered forensic psychiatric expert, also confirmed that Sgt Meeks was suffering from longstanding PTSD from shortly after his first tour to Afghanistan and that he was under the influence of alcohol at the time the events before the Court occurred. At page 18 of 32 of her opinion, she wrote that on a balance of probabilities, Sgt Meeks met the diagnosis of PTSD according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5):

 

“Sgt Meeks directly witnessed the death of soldiers during his combat tours. His own life was also threatened during his tours. It is my opinion that he actually met criteria for posttraumatic stress disorder following his first tour in 2008-2009 but that he managed his symptoms by binge drinking and over-working, thus not really feeling a need to seek out help not to report the symptoms that he suppressed. This was also in the context of fearing that his career would be threatened with such a diagnosis. After his second tour, Sgt Meeks’ symptoms worsened and they persisted in varying stages of intensity depending on the impact of stressors and how much or how little he was able to immerse himself in his work and in his drinking. His symptoms included:

 

•         Recurrent intrusive memories of traumatic events from his first tour;

•         Recurrent distressing dreams related to the trauma of both tours in Afghanistan;

•         Infrequent flashbacks;

•         Intense and prolonged distress when reminded of the trauma;

•         Efforts to avoid thoughts or feelings closely related to the trauma;

•         Persistent and exaggerated beliefs about himself, others and the world, including intense mistrust of others to the point of almost delusional paranoia;

•         Persistent negative emotional state and feelings of detachment from others;

•         Persistent inability to experience positive emotions

•         Diminished interests and activities;

•         Irritability and anger outbursts;

•         Hypervigilance;

•         Reckless and self-destructive behaviour;

•         Problems with concentration.

 

It is my opinion that Sgt Meeks only experienced occasional dissociative symptoms such as feeling of being detached from and as if he was an outside observer (sic) of his mental processes or body (depersonalization), therefore I would not include it as a specifier of his posttraumatic stress because it was not persistent and recurrent.”

 

[57]           In view of the expert evidence given before the Court and consistent with the DSM-5, there is absolutely no doubt that Sgt Meeks meets the medical diagnostic requirements of PTSD. In fact, there is no evidence to the contrary. As established by DSM-5 and as set out in case law (see paragraphs 202-203 of R. v. McEachern, 2003 ABQB 87), PTSD is an established mental health disorder or a mental illness. This fact was also generally conceded to by both counsel during their submissions.

 

[58]           However, to support a valid defence of NCRMD at law, it is not sufficient to merely prove that Sgt Meeks was suffering from PTSD at the time of the assault. To make out a valid NCRMD defence, the onus is on Sgt Meeks to demonstrate a causal link between his PTSD and the assault before the Court by showing that by reason of his PTSD, he was unable to fully appreciate the nature of the act and the natural consequences that would flow from his actions, or was deprived of the mental capacity to foresee and measure the consequences of the act (see page 1162 of Cooper).

 

Testimony and credibility of Sgt Meeks

 

[59]           As outlined above, since this is a “reverse onus” defence, Sgt Meeks bears the evidentiary and persuasive burden to establish, on a balance of probabilities, the defence of NCRMD.

 

[60]           Sgt Meeks testified that his memory of the early morning in question when the alleged assault occurred is very clear up to a specific point. He admitted that he has experienced a slight change of memory since the incidents, but the only change is with respect to specific and exact details of precise words.

 

[61]           A summarized version of his evidence is that Sgt Meeks was the platoon warrant officer of 7 Platoon, part of the rear party. The next day they were to join their fellow soldiers who were jumping into Bulgaria that evening.

 

[62]           After enjoying drinks and a meal that evening, they received information of an incident that necessitated a communications lockdown, and they were ordered to return to base. They informed the soldiers in the nightclub and although some soldiers exited the nightclub in a timely manner, the other half remained and had to be ordered to leave.

 

[63]           While they all gathered outside, having personally sustained a broken back on a parachute jump, Sgt Meeks explained to the soldiers the seriousness of the situation. He knew that the lockdown meant that there had been an incident that involved life-threatening injuries or death. He heard something about WO Oakley, who was his friend, and who would have been on the DZ.

 

[64]           He had known WO Oakley since 2012 and they were very close, having served together in the field and having just completed their warrant officers’ course together. He does not recall who mentioned WO Oakley’s name as his memory is very broken. He does remember some shouting but does not remember who was shouting and he testified that he specifically recalls Pte Melvin trying to go back into the nightclub, but he has no memory as to what happened after that point.

 

[65]            Afterwards, there was pushing and shoving outside between Sgt Meeks and the others. Although there is witness testimony alleging that Sgt Meeks told them that when he found Pte Meadows on the ground, he rendered first aid. He later told Dr Selaman that he has no recollection of this. Similarly, he has no recollection of calling his wife while he was in the German jail.

 

[66]           The next thing Sgt Meeks remembers is the sun coming up and people in the city coming to work. He was confused and disoriented. He contacted the Company 2 IC who informed him that WO Royce would pick him up. He sent WO Royce his geolocation and was picked up ten or fifteen minutes later.

 

[67]           He described having a large bump on his head which he showed WO Royce. When he returned to base, he remembers WO Hatcher, the quartermaster, asking to see his knuckles, which he thought was strange. Afterwards, he remembers having a conversation with Capt Simmons who explained to him what had taken place, leaving him in shock.

 

Sgt Meeks’ personal stress

 

[68]           It is very notable, that prior to the incident before the Court, Sgt Meeks was under immeasurable stress. The months and weeks leading up to his deployment to Germany were both emotionally demanding and hectic. Although both experts agreed that the reaction Sgt Meeks experienced was not caused by alcohol alone, they both agreed that his personal stress and alcohol use were contributing factors in his reaction.

 

[69]           Additional factors that were affecting Sgt Meeks at the time of the incident included the following:

 

(a)               the evidence suggests that Sgt Meeks finds it upsetting when individuals do not follow orders, particularly when it comes to operational or safety issues;

 

(b)               his career had meant everything to him, but he encountered increased stress and work dissatisfaction in the months leading up to the exercise in Germany in June 2019;

 

(c)               his daughter was born in March 2019, and he had to leave three days later for his senior leadership course in Gagetown, New Brunswick;

 

(d)               he did not feel supported by his chain of command, particularly when they declined his request for parental leave which fostered resentment and a loss of purpose and enjoyment in his work;

 

(e)               the senior leadership course in Gagetown, New Brunswick lasted two and a half months which he attended with WO Oakley and where they spent all their time together;

 

(f)                he was only back in Petawawa for approximately three weeks prior to deploying to Germany;

 

(g)               during the three weeks he was back in Petawawa, he was barely home as he worked very hard to prepare for the deployment. He was admittedly anxious about leading the platoon of soldiers he was given. He reported working sixteen-hour days and set up a cot in his office to sleep at work to avoid wasting time in transportation which led to stress on the marriage and feeling burnt out;

 

(h)               upon his return from Germany, he was to be posted to Brockville, a move he viewed as a demotion. The second-order effect of the transfer was that it would create financial stress for their family since his wife was also employed at Canadian Division Support Base Petawawa and she would have to leave her job.  He felt he was not being provided sufficient time to do a house-hunting trip or prepare for his move, and felt he had to choose between his family and his career.  He requested to be able to work remotely for part of the time but was informed a few days prior to deploying to Germany that his request was not approved;

 

(i)                 in May 2019, he decided to submit a memorandum seeking his voluntary release which he described as emotionally one of the hardest things he had ever done. He was “maxed out”. The memorandum was not actioned as he was scheduled to go on exercise in Germany; and

 

(j)                 they arrived in Germany about six days prior to the incident in question.

 

Credibility of Sgt Meeks

 

[70]           I accept Sgt Meeks’ evidence about his childhood as relayed to the expert psychiatrists and discussed in court, the trauma he experienced in Afghanistan, and the symptoms which support his diagnosis of PTSD.

 

[71]           The defence does not contend that the PTSD alone is the basis for the NCRMD defence. Rather, the defence argued that the NCRMD claim is based on the assertion that because of Sgt Meeks’ particular history, and the PTSD, he dissociated and acted involuntarily after he heard that WO Oakley had died. Thus, the crux of the NCRMD defence is whether Sgt Meeks dissociated such that his actions were involuntary at the time of the assault on Pte Meadows.

 

[72]           Closely related to this issue are the credibility of Sgt Meeks’ evidence that he heard that WO Oakley had died, and his evidence that he does not remember much of the events afterwards, until sometime the next morning.

 

[73]           The defence puts forward the NCRMD defence on the basis that if the Court accepts, on a balance of probabilities, that Sgt Meeks dissociated at the time of the assault such that his actions were involuntary, this will fall within subsection 202.13 (1) of the NDA on the basis that he would have been incapable of appreciating the nature and quality of his acts. 

 

[74]           The nature of the defence in this case is essentially that the alleged belief that WO Oakley had died was a psychological blow that led to a flashback, which put Sgt Meeks into a dissociative state to the point of automatism.

 

[75]           The prosecution raised questions regarding the credibility of Dr Ward’s expert report because she relied primarily on what Sgt Meeks told her. I note that both Dr Ward and Dr Selaman considered and formed their own conclusions about the credibility and reliability of Sgt Meeks’ version of what occurred leading up to, during, and after the assault. They based their respective conclusions both on what Sgt Meeks told them, and on his evidence at trial. However, both experts also had access to the witness’s written and oral statements, Sgt Meeks’ medical records and the testimony given in court as well as the Court’s factual findings that were made in my 12 December 2022 decision. I note that based on the timing of their assessments, Dr Selaman had access to more evidence and she conducted a longer assessment.

 

[76]           There is nothing inappropriate about the experts forming their conclusions about the credibility and reliability of Sgt Meeks’ reports of what happened; indeed, it is an essential part of their process in forming their own independent expert opinions, because they require a factual basis. However, I am also cognizant of the limit on how I can use their conclusions about the credibility and reliability of Sgt Meeks’ evidence given at court martial and I must conduct my own assessment.

 

[77]           At paragraph 188 of Stone, the SCC makes it clear that in assessing any automatism defence, it is appropriate for trial judges to consider the nature of the alleged trigger. As referenced above, Sgt Meeks asserts that he has little to no memory of what occurred after he allegedly heard that his good friend WO Oakley had died until the next morning.

 

[78]           The prosecution argued that there is no evidence of this trigger and that, conveniently, Sgt Meeks did not report this to anyone until he was back in Canada. I note that he did report this to CWO Durnford when he returned to Canada, who in turn, sent Sgt Meeks to the padre, who then sent him to the doctor on 20 June 2019, two days after the incident. This was in fact documented in his medical records. I note that the incident unfolded on 18 June 2019, and shortly after reporting back to Capt Williston, Sgt Meeks was advised that he was being escorted back to Canada. It is unlikely he would have said much at that stage as he was being escorted home and he had the right to remain silent.   

 

[79]           There were varying reports regarding when Sgt Meeks might have learned about what happened on the DZ in Bulgaria. The prosecution challenged Sgt Meeks’ credibility with respect to his assertion that he somehow heard that WO Oakley had died. The evidence of the witnesses suggests that when they received the order to leave, the witnesses reported knowing full well that someone had been injured on the DZ, but they did not know any specifics. The evidence also supports the fact that Sgt Meeks took the time to explain to the junior members what the “Priority Alpha” meant and why they needed to take it seriously. So, although he did not know the specifics, he was engaged in communicating the seriousness of an incident.

 

[80]           Relying on my own military experience, I find that with Sgt Meeks’ level of operational experience, hypervigilance, and a history of consistently considering worst-case scenarios, he did not need anyone to mention WO Oakley’s name to have this thought enter his mind. As he mentioned to Dr Selaman, in his experience “Pri-Alphas usually don’t make it out alive”. With this perspective, I believe that his mind would naturally speculate about what happened, particularly since he knew that WO Oakley was there. The fact that nobody testified to mentioning WO Oakley’s name is not of pivotal importance. What is important is that Sgt Meeks made the relevant association in his mind. It was a proven fact that Sgt Meeks was a close friend to Warrant Oakley and that he was on the DZ that night. This was not speculation.

 

[81]           It was Sgt Meeks’ evidence that this trigger or realization that Warrant Oakley might have been killed occurred while they were outside after exiting the nightclub.

 

[82]           After a thorough review, I accept the evidence that Sgt Meeks has no memory of the events of the assault. Based on all the facts before me, I do not feel that he is lying, malingering, or feigning. Unfortunately, since he has no memory, I am not able to assess his reliability.

 

[83]           The issue before me turns on whether I accept his argument that he experienced a dissociative event in the early hours of 18 June 2019. This is a determination that must be made independent of his personal assertion. In a case such as this, where I believe his testimony, a determination of the issue of his involuntariness is not dependent upon his credibility alone, but it requires an exhaustive analysis of many factors.

 

Assessment of Stone factors

 

[84]           It is evident that a mere assertion from Sgt Meeks of involuntariness will not suffice on its own to support a defence of NCRMD. It requires corroborating evidence consistent with the factors set out by the SCC in Stone. At paragraph 189 of Stone, the SCC suggests that it is helpful for the Court to consider the existence or non-existence of evidence which corroborates the accused’s claim, recognizing that this evidence may take different forms.

 

Prior medical history of dissociative states

 

[85]           First, evidence of a documented medical history of automatistic-like dissociative states would certainly assist the defence. Although Sgt Meeks reported few incidents of flashbacks related to his trauma, the evidence suggests that Sgt Meeks did experience some flashbacks or episodes. I am also aware that since Sgt Meeks was diagnosed with PTSD, he tended to minimize his symptoms when reporting to medical authorities.  

 

[86]           In her testimony, Dr Ward described for the Court how reactions experienced by persons suffering with PTSD occur on a continuum. I have summarized the relative points as follows:

 

(a)               dissociation is part of a continuum of responses that occur with persons suffering from PTSD and is in the second category;

 

(b)               the first section essentially describes the exposure and then subsequently the next section concerns the intrusion and reliving the traumatic events;

 

(c)               the intrusion and the reliving of the traumatic events occur along a continuum;

 

(d)               the lowest level on the continuum is the intrusive memories of the event, and you move along the continuum until you get to flashbacks, which are generally sensory experiences connected to the event; 

 

(e)               with flashbacks, people can still retain a sense of knowing that they are partly in the present and partly in the past;

 

(f)                dissociation occurs at the higher end of that continuum of re-experiencing. It can also be a lesser symptom.

 

(g)               dissociation symptoms can be a de-realization or depersonalization resulting in the loss of contact between the person and those around them.

 

[87]           In short, a person suffering from PTSD can experience a broad range of reactions when triggered and most of them do not rise to the level of a dissociative experience. As I explained above, I accept that Sgt Meeks experienced a trigger to some degree. In practical terms, I must determine where on the continuum his reaction is situated. As Dr Ward made clear, dissociation occurs when the person is situated at the higher end of the continuum of reactions and the person is immersed in their trauma and no longer immersed in the reality around them. Not every reaction will result in a dissociative state.

 

[88]           It is unclear whether the incidents experienced by Sgt Meeks were “automatistic-like”, but based on the evidence, they did involve the loss of memory or a significant reaction of some sort. The documented evidence suggests the following:

 

(a)               while on the second tour in 2010, as reported to Dr Selaman, certain smells like meat cooking or garbage burning triggered very specific memories. He recalled one specific incident during his second tour in Afghanistan when they were hit with a rocket-propelled grenade and the driver door opened, letting out smoke. He felt he was transported to a time in his first tour when an explosion pushed a driver, dead, out of the driver’s hatch. During this feeling he thought he would find a dead body, but he was just experiencing this déjà vu related to his first tour;

 

(b)               on 9 February 2011, Sgt Meeks had an appointment with Dr Smith where he described having a flashback while driving his vehicle after “hearing” a single boom. He reported reliving an event where two of his friends were killed by an IED. The flashback consisted of olfactory/gustatory experiences and Sgt Meeks then threw up over himself while driving his vehicle;

 

(c)               on 11 December 2019, Sgt Meeks reported to Dr Fukakusa that he had memory gaps related to the incident in Germany as well as on Remembrance Day 2019 when he received the news that his best man had attempted suicide by carbon monoxide poisoning, which was interrupted when a postal worker found him and called for help.  This latter incident led to a period of time for which he cannot account for;

 

(d)               Sgt Meeks reported to Dr Ward, in the summer/fall of 2020 that when his daughter screams, he gets flashbacks to an orphanage in Afghanistan. Sgt Meeks also described for both Dr Selaman and the Court how he felt when his daughter could not stop crying at home. He was reminded of a camp in Afghanistan where they provided security for a Canadian doctor that was providing medical care to women and children. He saw a little girl whose eyes were black and another who had an infected amputated limb. He had this “really weird” feeling that his daughter was going to have black eyes and lose her legs; and  

 

(e)               Sgt Meeks reported frequent incidents of memory loss while driving. He described how he would be driving and something would remind him of a past trauma, and without realizing it, he travelled down a block of the road while his mind was “elsewhere”.

 

[89]           The above episodes, which were documented both before and after the assault, suggest that Sgt Meeks has experienced various levels of reactions from his past trauma. The SCC suggests that the “more similar the historical pattern of dissociation is with the current claim of automatism, the more persuasive the evidence will be on the issue of involuntariness” (see paragraph 189 of Stone).

 

[90]           The documented history of dissociation experienced by Sgt Meeks above was in direct response to triggering stimuli from the trauma he experienced in Afghanistan. The above episodes were often triggered by external stimuli such as smells or sounds. However, it is also notable that he did have reactions following internal stimuli associated with such things as learning of the suicide attempt of his best man or during driving incidents when he would be reminded of a particular memory. I note that his second tour to Afghanistan involved the significant task of driving in highly dangerous and hostile conditions as he ensured the safe passage of the commander he supported. In every case, the episodes relate back to the trauma experienced in Afghanistan with the loss of friends, etc. I would note that Sgt Meeks’ reaction to the suicide attempt of his best man was very similar to this case in the sense that there was a period for which he has no memory. This provides some support that the same type of stimuli could trigger a similar response. However, it is notable that the other incidents where he lost hours of time, or he experienced periods of no recollection, there were no instances of reported violence.

 

Corroborating evidence of witnesses or bystanders

 

[91]           Next, it is important to carefully review the evidence of witnesses who were present and observed him both at the time of the incident and shortly thereafter. At paragraph 190 of Stone, the SCC suggests that “evidence of a bystander which reveals that the accused appeared uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act will also be relevant to the assessment.”

 

[92]           The evidence suggested that when the evening began, all the members were in a positive mood, enjoying their time in Germany. Sgt Meeks was observed by witnesses as happy and in good spirits and having bought the soldiers a round of shots to thank them. Prior to the two captains getting informed that they needed to return to base, Sgt Meeks was sitting with them discussing the upcoming exercise. There was also evidence that when the soldiers were told to go back to the base, Sgt Meeks accompanied Capt Simmons. Capt Simmons noted later that before the conflict erupted, he observed Ptes Meadows, Melvin and Berthe all yelling at Sgt Meeks and told the Court that Sgt Meeks’ demeanour was agitated and aggressive which was not the same demeanour he had when they left the bar.

 

[93]           I note that immediately after Capt Simmons physically removed Sgt Meeks from the assault on Pte Meadows, Capt Simmons interacted directly with Sgt Meeks. He described Sgt Meeks as visibly angry, clenching his fists and not really looking at him. When Capt Simmons asked Sgt Meeks, “Why did you do that?” he responded with simply, “That’s what I do”. He did not recall Sgt Meeks making any other comments and he was not looking at him, but rather he was looking to his left and to his right and grunting with an adrenalin rush.

 

[94]           Further, although the Court has limited information as to how Sgt Meeks transitioned after Capt Simmons calmed him down, we know that Sgt Meeks returned to the scene where Pte Meadows was lying on the pavement and either attempted to give him first aid and/or instructed the paramedics. Although he advised Dr Ward and Dr Selaman that he has no memory of this, he told WO Royce that he saw Pte Meadows on the ground and told Capt Williston that when he found Pte Meadows on the ground, he responded by giving him first aid. He also made this same statement to his Regimental Sergeant-Major when he returned to Canada.

 

[95]           The evidence suggests that the American military police as well as the German police arrived shortly after the incident. Eventually Sgt Meeks was arrested by the local German police and brought to the station.

 

[96]           The evidence suggests that he was detained by the German police and while there, he called his wife and told her that he was detained and wanted her to call the Commander of the Army. When WO Royce picked up Sgt Meeks, he told him that he had been roughed up by the police and beaten with batons. He complained of a bump on the back of his head. When he spoke with Capt Williston, he said his forearms were sore from being beaten by the police with batons upon his release from the police station.  Capt Williston also noticed Sgt Meeks’ knuckles were scraped.

 

[97]           I found it particularly interesting that WO Royce testified that Sgt Meeks did not seem to know about the parachute accident until WO Royce told him in the car after he picked him up to bring him back to the base. I note that the prosecution relied upon this as evidence that Sgt Meeks had no knowledge of what had unfolded. However, this runs contrary to the evidence of the other witnesses who testified that they were told about the communications lockdown and although they did not know the details, they did understand it to be serious. Further, both Sgt Meeks and Capt Simmons testified that Sgt Meeks explained to the troops the meaning of the Priority Alpha or a communications lockdown. If Sgt Meeks was genuinely surprised the next morning when he learned the details from WO Royce, this evidence provides some support to Sgt Meeks’ assertion that he experienced a reaction that caused him not to remember much of the detail from the night before.

 

Motive

 

[98]           At paragraph 191 of Stone, the SCC suggested that a “motiveless act will generally lend plausibility to an accused’s claim of involuntariness.” 

 

[99]           In Stone, the SCC agreed with “the plausibility that a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the ‘trigger’ of the alleged automatism is also the victim. On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased.”

 

[100]       Consequently, it is important for me to assess whether there is evidence as to “whether or not the crime in question is explicable without reference to the alleged automatism.” The SCC suggested that, “If this question can be answered in the negative, the plausibility of the accused’s claim of involuntariness will be heightened.”

 

[101]       The evidence was clear that Pte Meadows was well liked, hard-working and a good soldier and there was no animosity between him and Sgt Meeks. Although it is bewildering to Sgt Meeks and to those who know both the members involved as to why he would attack Pte Meadows in such a violent manner, it is important to review the events as they unfolded.

 

[102]       As I found in my earlier Meeks decision, just prior to the assault, Sgt Meeks found himself in an unfortunate situation that evolved when Pte Melvin wanted to fight him. At paragraph 168, I wrote:

 

[168] If I summarize the evidence provided by the witnesses that favours Sergeant Meeks, I find that it is clear that Private Melvin wanted to fight Sergeant Meeks and was being held back by his peers. We also know from Captain Simmons that there were several soldiers yelling at Sergeant Meeks and after Private Berthe inserted himself to calm them down, he was moved out of the way. It appears that his removal was immediately followed by Private Meadows entering the fray, who was described as “all hyped up”. The evidence suggests that Sergeant Meeks pushed or Private Meadows fell and the evidence suggests that is when Private Melvin broke free from those restraining him. So, it appears that Sergeant Meeks was facing three privates, all drunk, yelling and pushing and who would have appeared to him as intent on fighting him. The evidence suggests that Private Meadows did fall to the ground, but he told the court that he got back up and Private Prupas stated that Private Meadows was going to try to push Sergeant Meeks, while at the same time, Private Meadows stated that Private Melvin was advancing on Sergeant Meeks. Sergeant Meeks then punched Private Meadows once in the face which caused Private Meadows to fall to the ground.

 

[103]       As I mentioned in my decision, I found that it was possible that based on the crystallization of the events unfolding at that specific moment in time, Sgt Meeks’ punch to Pte Meadows was an instinctive reflex delivered in self-defence given that Pte Melvin was advancing on him at the exact same time that Pte Meadows attempted to get in between them.

 

[104]       In other words, the original punch that Sgt Meeks delivered to Pte Meadows is explicable in the context of the events unfolding. It is indeed a rational response. This was not a case where Sgt Meeks simply walked up and punched and kicked Pte Meadows who was standing innocently to the side. Based on facts such as this, the plausibility of a claim of dissociation to the point of involuntariness is decreased.

 

[105]       However, as evidenced in both experts’ evidence, not recalling details and having amnesia is not the equivalent of not appreciating the nature and quality of the act or omission, or of knowing that it was wrong. There are many reasons why Sgt Meeks would have no memory of the incidents.

 

[106]       The next stage requires me to separate out the effects of Sgt Meeks’ amnesia from the alleged unconsciousness during the events themselves. As set out at paragraph 10 of Stone and “noted by Lord Denning in Bratty v. Attorney-General for Northern Ireland, [1963] A.C. 386, at p. 409: Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time”.

 

Capacity assessment

 

Nature and quality of the act and moral wrongfulness

 

[107]       The symptoms of PTSD manifest in different ways and not all members with PTSD suffer the same symptoms. The common evidence from the two experts was to the effect that a dissociative state is a state that might be experienced by someone suffering from PTSD and that it could render the individual incapable of appreciating the nature and quality of their actions and their ability to know the wrongfulness.

 

[108]       As briefly discussed, PTSD triggers can lead to a wide range of reactions that are situated on a sliding scale, ranging from the lowest level of intrusive memories to flashbacks that can evolve into the state of dissociation where the member loses all contact with their current reality and those around them.

 

[109]       The expert evidence suggested that persons experiencing dissociative episodes may feel or behave as though the traumatic events are recurring and may believe that they are in another setting and misconstrue what is unfolding. Consequently, in some cases they may not be cognizant of the character of their actions. These types of incidents are usually triggered by environmental stimuli that mimic the environment in which the original trauma was experienced.

 

[110]       Based on the facts and evidence of this case, this Court must decide whether at the time of the assault, Sgt Meeks was in a dissociative state related to his PTSD, and if he was, whether that mental state rendered him incapable of appreciating the nature and quality of his actions and his inability to know the wrongfulness.

 

Assessing the Expert Psychiatric Evidence

 

[111]       As highlighted above, this Court is faced with two contradictory opinions from expert psychiatrists who assessed essentially the same information. In my assessment, it is imperative that I be certain that the facts upon which their respective opinion relies have been established in the evidence.

 

[112]       In R. v. Neve, 1999 ABCA 206 at paragraph 189, the Court sets out seven factors for a  trial judge’s consideration in its assessment when expert psychological or psychiatric evidence is called at trial:.

 

1.                   the qualifications and practice of the psychiatrist;

 

2.                   the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner;

 

3.                    the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from the personalities, the circumstances of the contact, and the role of the psychiatrist;

 

4.                   specifically and precisely what documents the psychiatrist had available and reviewed, or example, from earlier court proceedings, institutional records, other medical consultations, or treatment;

 

5.                   the nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family);

 

6.                    specifically and precisely what the psychiatrist relies on in coming to an opinion; and

 

7.                   the strengths and weaknesses of the information and material that is relied on.

[Emphasis in original.]

 

[113]       When the respective curriculum vitae of the two forensic psychiatrists were reviewed in court, there were no concerns raised regarding their qualifications or training by either counsel or the Court.

 

[114]       Dr Selaman came to her opinion after conducting almost nine hours of interviews, broken down over four different sessions with Sgt Meeks, which included five hours by video, three hours in-person and then a follow-up interview of forty minutes.

 

[115]       Dr Ward conducted her assessment during the height of the pandemic by conducting two interviews on 24 July and 11 September 2020 exclusively by video for a total of two and a half hours.

 

[116]       Both psychiatrists had access to all available disclosure information related to the charge before the Court, which included all the witnesses’ written and audio/video statements in addition to all of Sgt Meeks’ CAF medical, psychiatric and treatment records over the course of his entire military career.   

 

[117]       It was noteworthy that Dr Selaman conducted her assessment in 2022, approximately eighteen months after Dr Ward conducted her assessment. Consequently, Dr Selaman had the privilege of reviewing Dr Ward’s opinion as well as reviewing any additional medical information or other relevant documentation that had been collected since the first review. I also noted that Dr Selaman reviewed Sgt Meeks’ Personnel Development Reviews and evaluation reports and conducted an interview with Sgt Meeks’ wife.

 

Veracity of facts and strengths and weaknesses of information relied upon

 

[118]       In considering and assessing their respective expert evidence, I focussed on the facts they relied upon as the basis for their opinions. Importantly, I was cognizant of the facts already determined in this case as well as the new evidence that the prosecution introduced on this application. During their respective testimonies, the experts were asked to opine on whether the finding of facts determined in my decision changed their earlier written opinions. In both cases, they said that the decision did not change their respective opinions.

 

[119]       If the facts found by the trier of fact differ from the facts upon which the expert based their opinion, depending on how different they are, this may weaken the weight to be given by the trier of fact to the expert opinion, or in extreme cases lead a trier of fact  to find that the expert opinion should be given no weight (see R. v. Sullivan, 96 C.C.C. (3d) 135 (BCCA) at paragraphs  66 to 74). 

 

[120]       Under cross-examination, it became clear that much of Dr Ward’s opinion was contingent upon the period of amnesia or lack of recall that Sgt Meeks experienced during and after the assault. She based her written opinion on the evidence that she had at the time of her assessment. In her written opinion, Dr Ward wrote:

 

“[I]t is more likely than not that, at the time of the alleged offences, Sgt Meeks was experiencing a Dissociative Amnesia, which was triggered by his belief, in the chaos of the moment, that WO Oakley had been killed. [It is possible that no one told him that Oakley had been killed and that he miss-heard an utterance about the accident or about Oakley, but in either case, his belief would have been a trigger].”

 

[121]       Dr Ward described how dissociative amnesia “was part of his PTSD and [was] made more likely by his having consumed alcohol and being among other military members with the adrenalin of the moment they had to organize and return to base.” Dr Ward described how dissociative amnesia occurs:

 

“Dissociative amnesia is a marker for acts which were conducted during a dissociative state. During such a state, control over one’s actions may be diminished. There is a disconnection between awareness, actions, and surroundings. Essentially, behaviour during a dissociative state is automatic, in which the conscious mind does not go with the act being committed.”

 

[122]       When asked when a patient would not be aware of the reality of their actions, Dr Ward explained that it could occur during a flashback, while she also recognized that some people can be aware they are in a flashback and be fully immersed in an experience from an old trauma while still doing automatic behaviours in the present. She explained how it is a complex mix of present-day action combined by the experience of the person, as if they are in a previous traumatic event. She admitted that there is no clear line as it exists along a continuum. A full flashback where the individual is immersed in the trauma is a full dissociative experience.

 

[123]       Dr Ward believes that in general, Sgt Meeks has experienced flashbacks or full dissociative states, which she admitted have been infrequent. There were times when he has had more intrusive symptoms, but in her view, he had some prior to the events.

 

[124]       She described how a trigger can occur that sends a person into a flashback and that often that memory remains as a marker and is something that the person will remember, and they might not remember what happened afterwards. She described how it was possible to forget the trigger but that that does not happen very often. It is often the last memory they have before their behaviour changes.

 

[125]       The Court originally heard evidence from Dr Ward that, in her opinion, on a balance of probabilities, Sgt Meeks was in a dissociative state at the time of the alleged offences.

 

[126]       Dr Selaman stated that in her opinion “that Sgt Meeks was suffering from ongoing Posttraumatic Stress Disorder at the time of the alleged offences. “She further added that she considered “whether Sgt Meeks could have been in a dissociative state related to his PTSD at the time”. After considering the same issue, Dr Selaman believed that at the time of the assault, “Sgt Meeks was not experiencing a dissociative reaction (flashback) related to his PTSD.”

 

[127]       In conducting my analysis, I examined the evidence the psychiatrists relied upon in coming to their respective opinions and assessed the strengths and weaknesses of the information and material that formed the basis of their conclusions. I found that although they originally disagreed as to whether Sgt Meeks was in a dissociative state to the point of involuntariness at the time of the incident, the facts they relied upon were relatively consistent with each other. The differences arose from the inferences they drew from the same facts.

 

Testimony of Dr Ward

 

[128]       During her testimony, Dr Ward recognized that some facts were not available to her when she conducted her first assessment and that she did not originally take them into account. Such an example was the telephone call from Sgt Meeks to his wife from a German police station or jail.

 

[129]       Dr Ward described for the Court how her report differs from that of Dr Selaman as follows:

 

(a)               Level of Intoxication. Dr Selaman placed greater emphasis on Sgt Meeks’ level of intoxication and estimated that he consumed twenty standard drinks, whereas Dr Ward’s estimate was closer to ten. Dr Selaman felt that notwithstanding Sgt Meeks’ report that he had only blacked out once previously in his drinking experience, she felt that he could have blacked out due to alcohol and that that could be the cause of his memory lapse. However, Dr Ward’s view was that this is highly unlikely, given that he was drinking approximately the same amount of alcohol that night as he tended to on five out of seven nights leading up to the offence. For Sgt Meeks, this was an ordinary amount of alcohol, and essentially blackout comes when a large amount of alcohol is consumed over a relatively short period of time and that was not the case of Sgt Meeks here based on his tolerance of alcohol at the time of the incident;

 

(b)               Dissociative experience. Dr Selaman and Dr Ward differ in terms of what Sgt Meeks was experiencing at that time. Dr Ward’s view was that he was disassociated and experiencing a flashback. Although she did acknowledge that the support for this contention is somewhat circumstantial. She explained that when people have been in a flashback, they will remember the content of the flashback, but Sgt Meeks does not recall the content of what he was experiencing. However, there are other things that are important to consider, and one of those is the nature of potential triggers. Sgt Meeks stated in court that he has a memory of hearing that WO Oakley had been hurt or killed in the exercise. No one else does. No one else reports having said that, and in fact, it is probably more likely than not that there was no detail about who had been injured or when that information was available to Sgt Meeks before the incident. She thought it is most likely that he heard mention of WO Oakley and his brain put that together with knowing that there had been an accident and somehow that was part of the trigger for him in going into a flashback state;

 

(c)               Disproportionate response to Pte Meadows. From Dr Ward’s perspective, the other part of the trigger was the actual fight or altercation with Pte Meadows which she feels was part of the trigger into a flashback. She based this on Sgt Meeks’ response to Pte Meadows in the moment, which she views as disproportionate. In Dr Ward’s view, the kicks were disproportionate and were out of context to what had occurred earlier in the night, and this is supportive of Sgt Meeks having been in a flashback, given that he has dealt with conflict and been intoxicated when dealing with conflict at other points in his career;

 

(d)               Racial epithet. The utterance of, “night night Nigger”, during the kick or just before the kick has been taken to mean that he knew that he was about to render or had rendered Pte Meadows unconscious. From Dr Ward’s perspective, it could mean that Sgt Meeks was not seeing Pte Meadows. She felt that he might have been using a slur that he might have used working in Afghanistan fighting someone who is non-Caucasian. She views this as circumstantial evidence that supports the inference that he was in a flashback at that time as opposed to being aware of what he was doing;

 

(e)               Behaviour at time of the offence. Dr Selaman indicated in her report that there was no evidence of Sgt Meeks appearing different and not appearing to be responding to his surroundings. However, she noted that Capt Simmons’ evidence, did in fact bring out some aspects of Sgt Meeks’ behaviour immediately after the offence. When, Sgt Meeks was taken aside by Capt Simmons, and was described as not being fully aware and only making, basically, single-word responses, as in “that's what I do” and was not engaged in a conversation, continuing to glance around and appearing hypervigilant. She noted that Capt Simmons reported that Sgt Meeks subsequently made some kind of attempt to render first aid to Pte Meadows. However, according to Dr Ward, this does not make any sense in the context of someone who was fully aware that they had, themselves, caused that injury. That individual would stay away, in Dr Ward’s view, but Sgt Meeks was engaged in trying to tell the paramedics what to do with apparent involvement in first aid; and

 

(f)                in addition, Dr Ward viewed this content, with respect to the administration of first aid, to be significant because one of the most dramatic incidents for Sgt Meeks in Afghanistan was with an IED and having then provided first aid. Additionally, this is an experience which he has had a flashback to in the past and is supportive of the contention that he was in a flashback at the time of the offence.

 

[130]       Although Dr Selaman weighed Sgt Meeks’ alcoholic state higher in her assessment, Dr Ward, in her written opinion rejected the suggestion that the incident might have been caused by an alcohol- induced blackout for the following reasons:

 

“1.       The nature of the amnesia described by Sgt Meeks is that it started upon hearing that WO Oakley had been killed in the DZ. An alcohol-induced blackout would not necessarily have begun at that moment in time.

 

2.         Sgt Meeks was an experienced drinker who was not consuming alcohol particularly excessively compared to his usual standards, who had eaten a meal, and who rarely blacked out. Alcohol-induced blackouts are usually induced by rapidly rising alcohol levels in those with an empty stomach.

 

3.         There was no previous conflict between Sgt Meeks and Pte Meadows, and the degree of violence exhibited by Sgt Meeks was completely disproportionate. While intoxication and anger could possibly produce such a reaction, it would be unusual for him to have been drinking heavily for 10 years while in the military but not have had similar occurrences.

 

4.         Sgt Meeks has previously diagnosed PTSD and has a history of other episodes of dissociation in response to emotional events.

 

5.         Sgt Meeks’s mental state the next day included feelings of fear and paranoia.”

 

[131]       In short, after my review of the evidence and the opinions of the two experts, it was clear that Sgt Meeks’ consumption of alcohol was a factor in this episode he experienced, but it was not considered the sole underlying reason for his amnesia and reaction. In fact, Dr Selaman wrote that in her view, Sgt Meeks’ “disinhibition was related to alcohol”.

 

[132]       It was Dr Ward’s opinion that the offence occurred due to Sgt Meeks being triggered into a flashback where he was not aware who he was dealing with at the time of the kick, and he was in a mental state where he was acting as if he were in Afghanistan, or somewhere else. In coming to this opinion, she relied upon Sgt Meeks’ uttering of the words “night, night, nigger” as supporting evidence, although she admitted it was circumstantial.

 

[133]       This utterance when he delivered the kick can lead to several inferences, but based on all the evidence at court martial, I found in my earlier decision that it was suggestive of Sgt Meeks’ intention to render the person unconscious. I am conscious of the fact that Pte Meadows is Caucasian, and it can be inferred to be a racial epithet but, based on all the evidence at trial, the intention to render unconscious was the only supportable inference to be drawn. I did not find any other evidence or facts that support the suggestion that Sgt Meeks was drawn into a flashback where he believed he was in Afghanistan.

 

[134]       I am aware that Sgt Meeks has no memory of what occurred, and I have accepted this. However, I found no evidence to support that he was acting consistent with or that he believed he was in Afghanistan or engaged in combat. I reviewed all the witness testimony and there are no references to him doing or making any utterances that would suggest that he was in an alternate reality.

 

[135]       Sgt Meeks advised Dr Ward that he had no recollection of events from the point when he was outside and heard WO Oakley’s name until the next day. Under cross-examination, Dr Ward admitted that Sgt Meeks’ lack of recollection and his amnesia was the lynchpin to her conclusion. Although she also agreed that on its own, Sgt Meeks’ lack of recollection does not mean that he was not able to appreciate the nature and quality of his actions.   

 

[136]       The Court noted that at the time of writing her opinion, Dr Ward was not aware that during the same period of amnesia relied upon in her opinion, Sgt Meeks called his wife while in detention and explained exactly where he was. The content of this phone call reflects a level of cognition that is consistent with him being able to appreciate the nature and quality of his acts and reveals that he was aware of the reality around him. Although it was noted that his wife also described him as being “crazy” and “paranoid” and saying that the German police were beating him, he was able to look around and tell her where he physically was. He was oriented to his time and place, and this is evidence that during the same period for which he has no recall, he did not believe he was in Afghanistan or involved in a combat situation. Further, I would add that the fact that Sgt Meeks asked Mrs Meeks to contact the Commander of the Army is evidence that he was also aware of his status as a serving CAF member. When Dr Ward was asked to consider the above inconsistencies, she agreed that the above facts do limit the period of Sgt Meeks’ amnesia and undermine her opinion.

 

[137]       Further, the subsequent evidence presented by the prosecution with the witnesses of WO Royce and Capt Williston were presented after Dr Ward completed her opinion. These witnesses confirmed that at some point, Sgt Meeks did have some memory, because after the assault he told WO Royce, Capt Williston and Chief Warranty Officer Durnford that he had rendered first aid to Pte Meadows and that he had been beaten by German police, which is where he was geographically situated. There are indeed inconsistencies in his recount of the events. However, as Dr Selaman wrote in her report, “it is quite possible that it was not intentional on his part. It appears that this occurred through patching together information about an event that he does not remember and having time to consider various explanations.” It is also notable that in trying to patch together his memory, that those activities that others recounted to him as to what he did, may have affected his own recall. Dr Selaman also agreed that it was likely that Sgt Meeks did suffer memory loss.

 

[138]       The other inference drawn by Dr Ward that I found suspect was based on the rationale for Sgt Meeks unleashing such an assault on Pte Meadows. Dr Ward drew the inference that the assault was disproportionate. She was not alone in this regard.

 

[139]       It is also notable that on 20 June 2019 shortly after the assault, Dr Fukakusa saw Sgt Meeks and after his assessment, Dr Fukakusa was of the belief that Sgt Meeks suffered a brief psychotic episode that was likely made possible by his inebriated state and PTSD. In coming to this assessment, he relied upon the incident being “unprovoked” which in his view was “important since it signified the irrational nature” of Sgt Meeks’ attack on Pte Meadows. I believe that is somewhat the basis of Dr Ward’s assessment as well.

 

[140]       However, based on the findings of fact I made, I do not classify Sgt Meeks’ reaction as unprovoked. He was responding to a stressful situation where he was being drawn into a fight. As I explained above, and at paragraph 168 of my earlier decision, there was an escalation of tempers unfolding which likely placed Sgt Meeks in a vulnerable situation when Pte Meadows entered the fray “all hyped up”. There was clear evidence of provocation in the moment before the punch and kick. At first, Sgt Meeks pushed Pte Meadows aside, but after Pte Melvin broke loose and was charging towards him and Pte Meadows was getting up and approaching him, Sgt Meeks unleashed the punch directly at Pte Meadows. These facts are important because during this fight there is no evidence that Sgt Meeks was immersed in a different reality other than responding to the threat directly before him.

 

[141]       There is no doubt that the subsequent stomp to the head was out of proportion, and it was a significant factor in my findings. However, there is no escaping the fact that it flowed directly from the ongoing conflict. As Dr Selaman concluded in her report, “In my opinion, the provocation was that Pte Meadows intervened in a moment when Sgt Meeks was likely already in a hyperaroused and disinhibited state.” 

 

[142]       I note that Dr Selaman went on to conclude that:

 

“The hyperaroused stated [sic] appeared to be due to trying to ensure everyone was following orders and also possibly related to hearing that his friend was dead. The disinhibition was related to the alcohol. This combination of factors is what, in my opinion, led to an “out-of-proportion” reaction to a provocation, no matter how slight that provocation might be perceived to be. This, in my opinion, demonstrates a rational motive to Sgt Meeks’ actions, even if his actions appeared irrational due to their intensity.

 

[143]       After Sgt Meeks administered the blows to Pte Meadows and was calmed down by Capt Simmons, Sgt Meeks went to provide first aid to Pte Meadows and/or direct the paramedics. The prosecution suggested to Dr Ward that after Capt Simmons scolded Sgt Meeks for what he did, that Sgt Meeks felt remorse and went to remediate his behaviour by offering first aid to Pte Meadows. Dr Ward agreed that it was an alternate explanation, but in her view unlikely.

 

[144]       The prosecution raised the possibility that when he went to give first aid that it was not the same flashback. Dr Ward explained that seeing Pte Meadows on the ground could have triggered a different flashback where he needed to give first aid. The prosecution raised this as a viable alternative which is an important consideration. It is possible that this might have been the only flashback that occurred and if so, this would have been after the assault for which Sgt Meeks is charged. Further, the prosecution suggested that Sgt Meeks’ decision to render first aid to Pte Meadows suggests that he had an operating mind as he knew that Pte Meadows was injured.

 

[145]       Finally, at the close of her testimony, after considering all the additional evidence, Dr Ward expressed the view that she was no longer certain on a balance of probabilities that Sgt Meeks was incapable of appreciating the nature and quality of his actions.

 

Dr Selaman

 

[146]       The Court heard evidence from Dr Selaman that at the time of the assault, Sgt Meeks’ ability to appreciate the nature and quality of his actions was not impaired. She is of the view that Sgt Meeks was driven by a rational motive, thus he was able to know the wrongfulness of his actions at the material time.

 

[147]       In court, she explained her reasons why, on basically the same set of facts, she came to a different conclusion than Dr Ward. She provided her perspective on the trigger, amnesia, and disproportionate reaction.

 

Trigger and flashbacks

 

[148]       Dr Selaman described that in identifying a trigger, she would look for a sudden change in behaviour, and she noticed from the interviews and all the information that there was already the start of an altercation and heightened emotions and anger before. It did not seem to her that there was this sudden change and sudden anger.

 

[149]       Sgt Meeks was already being described as angry and irritable before he supposedly heard Warrant Oakley's name. She was careful not to suggest that he did not hear the name, but if he heard it, it was after there was a change, so it was not suddenly related to hearing Warrant Oakley’s name.

 

[150]       She looked at the accounts of the witnesses. Normally, when flashbacks occur or dissociative reactions occur, there is not a lot more to go on other than self-reporting and that can be difficult. In this case, there were several witnesses who recounted Sgt Meeks appearing intoxicated and appearing angry and irritable, but there was no mention of anything that might suggest he was experiencing a flashback to some traumatic incident.

 

[151]       In her general knowledge as a layperson, she does not know that the slur used by |Sgt Meeks would mean that he believed he was in Afghanistan. There is no evidence that suggests he was reliving some sort of combat scenario.

 

Amnesia

 

[152]       Amnesia for an event does not necessarily mean that the person is criminally or not criminally responsible.  When Sgt Meeks spoke with Dr Ward, he told her that after he heard Sgt Oakley's name, he forgot everything up until the point of waking up on the street. From the witnesses’ statements, it’s clear that he remembers getting the information about the communications lockdown and relaying that, at least to some people.

 

[153]       Reports from witnesses suggest that Sgt Meeks asked about or spoke about Pte Meadows being on the ground and having provided first aid which does not match with what he told Dr Ward.

 

[154]       For the period of alleged memory loss, there have been varying accounts of the period. Dr Selaman described that this is not to say that Sgt Meeks does not have some memory loss, but she does not believe it is connected to entering into a flashback experience after hearing Sgt Oakley's name. Dr Selaman explained that one can have memory loss, referred to as “dissociative amnesia”, which is separate from a flashback.

 

Disproportionate response

 

[155]       Dr Selaman would not agree that this was necessarily a disproportionate reaction. She further clarified that a disproportionate response does not necessarily mean that there was a flashback.

 

[156]       She described that there was already a lot of ongoing stress. There was already a conflict, people were not listening and were quite intoxicated. Sgt Meeks was already quite angry and there was an altercation when Pte Melvin went back into the bar to get his cigarettes. Pte Berthe got in between them and then Pte Meadows, who was also “hyped up”, got in between them as well, resulting in his injury.

 

[157]       Sgt Meeks’ was acting in response to a real conflict and there was a loss of control of the behaviour that was related to anger as well. When someone loses control of their anger, it can get out of hand. I do not think that necessarily means that he was not appreciating the reality he was in.

 

[158]       I must keep in mind that section 202.13 of the NDA requires that I presume that Sgt Meeks could appreciate the nature and quality of his actions when he kicked Pte Meadows, and he had knowledge of the wrongfulness of these actions unless the contrary is proven on a balance of probabilities. As I mentioned earlier, a balance of probabilities requires that the evidence be “sufficiently clear, convincing, and cogent to establish that it is more likely than not that the alleged elements exist.” 

 

[159]       As the Court set out at paragraph 107 of Dobson:

 

Evidence of the circumstances surrounding the relevant conduct, in other words, evidence of an accused's words and conduct contemporaneous with the alleged offence, may provide cogent evidence of the nature and extent of an accused's appreciation of the nature and quality of that conduct: Kirkby, at p. 59; Simpson, at p. 356.

 

[160]       As noted in Landry, appreciation of the “nature and quality” of the act refers to an incapacity by reason of the disease of the mind to appreciate the physical consequences of the act. I find that by using the term “night night Nigger” there is clear and convincing evidence that Sgt Meeks did appreciate that a kick to the head would incapacitate the person he was kicking. He was engaged in a fight and was rationally responding to the threat posted. He understood the physical consequences of that specific action. The other evidence supports that during the same period of amnesia, Sgt Meeks was fully aware that he was in Germany and serving in the CAF.

 

[161]       After reviewing all the evidence and weighing the views of the experts, I am satisfied on a balance of probabilities that when Sgt Meeks committed the act that formed the basis of the assault on Pte Meadows, he could appreciate the nature and quality of his acts. He knew that he was hitting or kicking someone, and he knew that the kick he was about to deliver would be debilitating.

 

Did the mental disorder render Sgt Meeks incapable of knowing that his acts were wrong?

 

[162]       In this second branch of the analysis, the Court must consider whether Sgt Meeks had the capacity to know that the assault was wrong. The Court must determine whether Sgt Meeks, by reason of his PTSD, was rendered incapable of knowing the assault was something that he ought not do. The Court must determine whether Sgt Meeks was both incapable of knowing the act was contrary to law and incapable of knowing that it was an act condemned by people generally (see R. v. Chaulk,  [1990] 3 S.C.R 1303 at 1355). This second branch requires a subjective assessment.

 

[163]       Subsection 202.13(1) of the NDA embraces not only the intellectual ability to know right from wrong, but also the person’s capacity to apply that knowledge in a rational way to their actions at the time an act is committed (see page 523 of Oommen). Stated differently, at page 520 of Oommen:

 

[T]he real question is whether the accused should be exempted from criminal responsibility because a mental disorder at the time of the act deprived him of the capacity for rational perception and hence rational choice about the rightness or wrongness of the act.

 

[164]       In R. v. Dobson, 2018 ONCA 589, leave to appeal refused [2019] SCCA No. 70, at paragraph 24, Doherty J.A. explained:

 

[24] In my view, Oommen, as interpreted in the judgments of this court, holds that an accused who has the capacity to know that society regards his actions as morally wrong and proceeds to commit those acts cannot be said to lack the capacity to know right from wrong. As a result, he is not NCR, even if he believed that he had no choice but to act, or that his acts were justified. However, an accused who, through the distorted lens of his mental illness, sees his conduct as justified, not only according to his own view, but also according to the norms of society, lacks the capacity to know that his act is wrong. That accused has an NCR defence. Similarly, an accused who, on account of mental disorder, lacks the capacity to assess the wrongness of his conduct against societal norms lacks the capacity to know his act is wrong and is entitled to an NCR defence.

 

[165]       Madam Justice McLachlin, as she then was, in R. v. Oommen, says on page 518:

 

The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.

 

[166]       It was noted during cross-examination of Dr Ward that her opinion on the NCRMD defence only addressed the first branch of the test that turned on whether Sgt Meeks was capable of appreciating the nature and quality of the acts at issue; that is, the assault on Pte Meadows. In this case, there was not a great deal of discussion, evidence, or submissions on this second branch of the test. The onus is on the defence. Consequently, I find that based on the evidence before me, the presumption that Sgt Meeks knew that his action was wrong must prevail as there is insufficient evidence before me to refute the presumption.

 

Summary

 

[167]       I have neither accepted nor rejected one psychiatrist’s opinion over the other. However, I have considered their diverging opinions and examined the nature and severity of the triggering stimuli. I looked closely for corroborating evidence, including from the evidence of the witnesses, and assessed whether there is evidence, or lack thereof, of a motive for the crime, and considered the trigger of the reaction that unfolded.

 

[168]       In summary, I find:

 

(a)               Sgt Meeks suffered from PTSD at the time of the offences;

 

(b)               he experienced a reaction from his PTSD arising from a trigger or stimuli, most likely from his belief that WO Oakley died; and I do not find that he was malingering or fabricating this trigger;

 

(c)               however, I do not find that the PTSD reaction he experienced was such that it induced a dissociative state; and

 

(d)               the reaction he experienced did not prevent him from appreciating the nature and quality of the acts he was committing, or of knowing that they were wrong.

 

[169]       I have, as a result, accepted much of the opinion of Dr Selaman over that of Dr Ward on the basis described above, focussed primarily on the proven facts that unfolded during the period of amnesia that Sgt Meeks reported. There is sufficient evidence during this time, that Sgt Meeks was fully aware of his surroundings and had an operating mind.

 

[170]       The evidence was that he was able to make rational decisions, was aware that he was a serving CAF member, located in Germany, being detained by police, and could later recount important details such as providing first aid. This evidence suggests that when the assault occurred, he was aware of the reality and was not in a full flashback or dissociative state.

 

FOR THESE REASONS, THE COURT:

 

[171]       FINDS Sgt Meeks guilty of the offence of assault causing bodily harm.

 

Counsel:

 

Mr D. Berntsen (Lieutenant-Colonel, retired), assisting the Director of Defence Counsel Services, Counsel for Sgt J.K. Meeks, Accused and Applicant

 

The Director of Military Prosecutions as represented by Major G.D. Moffat and Lieutenant-Colonel M. Pecknold, Counsel for the Respondent